Logging ruling could spark a truly just settlement.
by Don Cayo


Who could blame New Brunswick native people if they’re whooping it up? The provincial appeal court says at last what they’ve said for years: They have a right to cut trees on Crown land. And to sell the wood.

The Supreme Court has yet to confirm this week’s ruling, of course, and that could take months. But bands across Canada must share the glee, especially in Nova Scotia, P.E.I. and the Gaspe, where Dummer’s Treaty of 1725 – the basis of this case – held the same sway as in New Brunswick.

This case simultaneously involves both much more and much less than it seems. On one level, it’s about three logs. Tommy Peter Paul and two buddies cut three bird’s eye maples to sell – trees worth perhaps $1,000 each, perhaps $5,000, depending who’s estimating.

“The trees on Crown land are Indian trees,” wrote Mr. Justice John Turnbull in upholding Mr. Paul’s acquittal. “Not exclusively, but their rights are protected by treaty. . . . Indians have the right to cut trees on all Crown land.”

Does that raise the spectre of Indian loggers out on the land, vying with Crown lessees for the fruits of the forest? Well, yes. But a far more likely – and more desirable – outcome is a negotiated settlement, a long overdue process to define native rights and opportunities on the land that once was their forefathers’.

Fact is, natives never win much of anything from the rest of Canada unless they have something others want. That was true in the early years of our shared history: Indians were well treated only until new settlers no longer needed allies or teachers to help them survive. And it’s true to this day when it comes to land claims.

This court case, should it stand, puts native rights squarely in somebody’s way. Ergo, expect Ottawa and the province to say it’s time to talk.

But talk to whom? That’s tricky.

The New Brunswick Union of Indians has formally claimed the whole of the province. It’s not clear to me whether that’s a mere negotiating position or pie-in-the-sky dreaming, but Ottawa, perhaps understandably, hasn’t ever taken it seriously. It doesn’t have to. The Union may speak for the majority of New Brunswick reserves but, since the three largest quit in a huff a few years ago, it does not speak for the majority of natives. It has invited the strayed sheep back into the fold, but that’s yet to happen.

Even if it does, another question arises. Is a group of New Brunswick chiefs – at best an artificial amalgam of politicians representing most of the world’s Maliseets and only some of its Micmacs – the proper group to put forward a land claim? If the strength of the claim is Dummer’s Treaty – and natives have long said, and the court agrees, it is – should not the settlement be regional? And grass-roots? That’s much more complex, involving not only two tribes with a total of 25,000 people, but also dozens of often-squabbling reserves and four provincial governments – five if Newfoundland is included. And – if rights belong to people, not chiefs – then a credible land claim process must be open and let all band members have a say.

The mere thought that Indians may have rights outside of their postage-stamp reserves is, of course, already raising eyebrows and ire in New Brunswick. That’s not unexpected; it would be intolerable for the immensely important forest industry to face a long period of uncertain wood supply.

But the prospect of native people winning a resource base? That should be welcomed, not bemoaned. They’ve been far too poor for far too long. And any modicum of prosperity they’ve enjoyed in recent years comes with the heavy, heavy baggage of dependence.

A pilot project of the Woodstock band illustrates why reserves need control over jobs. In the 10 months since Pat Francis became chief, he has contacted 60 local companies offering to pay the wages of native apprentices hired for a trial period. The result? One part-time job for one waitress. Meanwhile, out of a labour force of 230, only three or four have off-reserve jobs – a statistic that’s distressingly consistent across the Maritimes.

There are models that work better, meeting the needs of both native people and established industries. The best is in Meadow Lake, Sask., where nine native bands co-manage a vast northern forest with partners from the broader community. In less than a decade they’ve fostered an entrepreneurial renaissance with scores of native investors creating hundreds of wood-harvesting jobs. They cut more carefully and plant more trees than the corporate loggers they replace. They’ve revitalized an old money-losing mill, now turning a healthy profit, and they’ve attracted a new mill to use former waste species. Twenty-five times more natives are working in the woods – and three times more whites.

The forest industry needs clear rules, so there’s some urgency to settle the matter in New Brunswick and to forestall problems that may stem from the case in Nova Scotia and elsewhere. But, if reasonable new rules come into play, the industry can adapt.

The ball right now is in governments’ court, but it won’t likely stay there long. Native people will have to set aside their spats if they’re to have a team ready to catch it when it’s tossed their way.